Dahlia, Walter, Emily:
Early in her 39-page dissenting opinion in Ricci, Justice Ginsburg makes this observation: “The Court’s order and opinion, I anticipate, will not have staying power.” Perhaps she means, as she said two years ago in her dissenting opinion in the Ledbetter case, that “the ball is now in Congress’s court.” That, in other words, Congress, having in 1991 corrected what it saw then as the court’s errors in narrowing Title VII, can do the same thing again and override the “strong basis in evidence” standard that today’s majority has imposed on employers. The court holds today that after administering a promotional exam or other job test that turns out to have a racially disparate impact, an employer has to live with that result unless it can show a “strong basis in evidence”—something more than just statistics—to believe it would be subject to Title VII liability under the statute’s “disparate impact ” prong before it can take the explicitly race-conscious step of scrapping the same; without such a strong basis in evidence, the employer would then be liable for violation of Title VII’s “disparate treatment prong.”
Or maybe Justice Ginsburg means that a future court will re-evaluate today’s holding and restore the balance in Title VII law that has existed for most of the statute’s life.
But it seems to me that another scenario is just as likely, and it is the one suggested explicitly both by Justice Scalia’s concurring opinion and by the Kennedy majority opinion itself. While noting that the court is not reaching the constitutional question at issue in this case—whether the city, when it refused to use the exam results, violated the Equal Protection rights of the test takers whose scores made them eligible for promotion—Justice Kennedy then says: “We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case.”
Bottom line: This is the unstable product of a court at an unstable moment, veering close to the cliff but (as in the Section 5 Voting Rights case a week ago) not quite, or not yet, over it. More later.